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"I have never welcomed the weakening of family ties by politics or pressure" - Nelson Mandela."He who travels for love finds a thousand miles no longer than one" - Japanese proverb."Everyone has the right to respect for his private and family life, his home and his correspondence." - Article 8 of the European Convention on Human Rights."When people's love is divided by law, it is the law that needs to change". - David Cameron.

Friday, 17 January 2014

Judges told how to interpret immigration rules

In
July 2012, the government made an extraordinary move in telling judges how to
interpret new immigration rules when challenged in court.

This
curbing of judicial powers has more recently been seen in proposals for a new
immigration bill which include a directive to the judiciary to give “little
weight” to Article 8 claims based on private of family life in immigration
cases.

The
provision didn't sit well with the Joint Committee on Human Rights, whoseDecember 2013 reportscrutinising the reforms contained within
the bill expressed the Committee’s uneasiness over such guidance.

This
remarkable new approach of ensuring judicial deference, pioneered by Theresa
May, redefines the concept of the rule of law by restricting the right of
judges to balance individuals’ Article 8 claims against the state interests
outlined in the second part of the article.

Not
to mention it conveniently helps the home secretary to deport undesirables
without consideration for their private or family life.

The
immigration rules introduced in July 2012 dictate how the balance should be
struck between individual rights and the public interest in a shift intended to
fill a “public policy vacuum”, according to the Statement of Intent.

Indeed,
the statement suggests judges have been craving such guidance on parliament’s
view, presumably unable to use their own discretion in determining immigration
claims based on private or family life.

Now
they need simply defer to the government interpretation of proportionality for
guidance rather than formulate an independent decision based on the balancing
of individual and state rights. Proportionality has apparently already been
demonstrated at a general level.

Furthermore,
this so-called public policy vacuum is astonishingly referred to as a
“democratic deficit”. Yet what this move to curb judges’ powers ensures is that
the judiciary follows government policy in making immigration decisions rather
than engaging in decision-making based on the principle of the rule of law.

If
this doesn't sound more democratic than judges holding the government to
account, that’s because it isn't. The state’s interests are already protected
in the second part of Article 8, rendering this judicial deference
unnecessary.

With
proportionality now based on deference to the Secretary of State’s view,
Article 8 claims are no longer getting fair consideration since the rights of
the individual are not properly weighed against those of the state.

While
the rules may have been sanctioned by parliament, albeit in a most unusual way
which did not see proper debate or sufficient scrutiny, this in itself does not
make them lawful. Even with judges working within the government’s guidance on
Article 8, the rules may be struck down by the courts.

The
MM & Ors v Secretary of State for the Home Department case didn't go so far
as to strike down the rules as unlawful. But Judge Justice Blake did determine
the rules as unjustified and disproportionate, in a judgment that demonstrates
even parliamentary guidance on how to interpret immigration rules is not enough
to guarantee legal challenges to government immigration policies will not be
made.